Dhaliwal (Migration)

[2018] AATA 491

Dhaliwal (Migration) [2018] AATA 491 (2 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Birpreet Singh Dhaliwal

CASE NUMBER:  1613862

DIBP REFERENCE(S):  BCC2014/1074372 OSF2013/112016

MEMBER:Nicholas McGowan

DATE:January 2, 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.



Statement made on 02 January 2018 at 9:37am

CATCHWORDS
Migration – Partner (Migrant)(Class BC) visa – Subclass 100 (Spouse) – Relationship with sponsor ceased – Claims victim of family violence – Provided Statutory Declaration – Valid non-judicially determined family violence claim has not been made by applicant under the Act

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, cl 100.221(2), (2A), (3), (4) or (4A), r.1.22, r.1.23, 1.24(b)

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 11 August 2016 to refuse to grant the applicant a Partner (Migrant) (Class BC) (Subclass 100) visa under s.65 of the Migration Act 1958 (the Act). The Tribunal received from the applicant, a valid application for review. The applicant applied for the visa on 20 September 2013 on the basis of his relationship with his sponsor.

2. The applicant appeared before the Tribunal in a public hearing held 2 January 2018 to give evidence and present arguments.

3. The Tribunal has before it the Department’s two files relating to the applicant; its own file; and copy of the Department’s decision provided by the applicant to the Tribunal.

   ISSUE

4. In the present case the applicant claims the relationship with his sponsor has ceased, and he has been the victim of family violence.

   EVIDENCE AND FINDINGS

5. Clause 100.221 of the Regulations requires that the applicant must, at time of decision, satisfy subclause (2), (2A), (3), (4) or (4A) of clause 100.221. Relevantly in this case, the first subclause of 100.221 is subclause (2), which requires that the applicant remains the spouse (as defined under section 5F of the Act), of their sponsoring partner at that time. As the applicant in this case (in his oral evidence to the Tribunal at its’ public hearing) is no longer the spouse of his sponsoring partner, he is unable to satisfy a central requirement of subclause (2) of clause 100.221. The applicant may satisfy that clause by meeting the requirements of at least one of the subclauses (2A), (3), (4) or (4A).

6. There are no claims by the applicant, or evidence before the Tribunal, which would support a finding that the applicant can meet any of the subclauses other than subclause (4), which the applicant claims he meets. Subclause (4) applies where the relationship has ceased and that either: the applicant or dependent child has suffered family violence committed by the sponsoring partner; or, there is a child to whom both the applicant and sponsoring partner have obligations in the nature of custody and/or contact/access. The applicant’s oral evidence is that he and his sponsor have no children.

7. Division 1.5 of the Regulations contains the substantive provisions relating to family violence and sets out the evidentiary requirements for a claim of this nature. Under r.1.22 a reference to a person having suffered or committed family violence is a reference to a person being taken under r.1.23 to have suffered family violence.  

   Has a claim of family violence been made under the regulations?

8. On no fewer than two occasions, the Tribunal advised the applicant that further to his claim of suffering family violence perpetrated by his spouse, the applicant is required to provide the necessary evidence in order to establish a valid claim for family violence under Regulation 1.24(b) of the Migration Act.

9. Relevantly to the above, the applicant has provided a Form 1410 Statutory Declaration. None of the other documents submitted to the Department or Tribunal - including those documents provided prior to the public hearing, meet the Evidentiary Requirements as set out in Regulation.

10. Relevantly in this case, a valid non-judicially determined family violence claim has not been made by the applicant.

    FINDINGS

11. Given the applicant’s oral evidence above, the Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the Subclass 100 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for that visa. Accordingly, the applicant cannot satisfy the criteria in cl.100.221 (2).

12. Further, the Tribunal is not satisfied that a valid claim has been presented in accordance with Division 1.5 of the Regulations. Accordingly, the Tribunal finds that the applicant has not made a valid claim of family violence under the Act, and relevantly in this case, has not satisfied the alternative subclause (4), or any of the other alternatives.

13. As the applicant’s relationship with his sponsor has ceased and he has not made a valid claim of family violence, the Tribunal finds the applicant does not satisfy the criteria for the grant of the visa.

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